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1987 DIGILAW 676 (ALL)

Anand Mohan v. Union of India

1987-07-10

D.S.SINHA, K.C.AGARWAL

body1987
ORDER 1. This petition under Article 226 of the Constitution has been filed for Certiorari quashing R. 3 of the Presidential and Vice-Presidential Elections Rules 1974 and for directing the respondents 2 and 3 to issue another Public Notice for holding of the Presidential election. 2. The petition has been filed mainly on two grounds. The first ground is that R. 3 framed under S. 21 of the Presidential and Vice-Presidential Elections Act, 1952 (Act No. 31 of 1952) is ultra vires the Constitution. The second ground is that no Public Notice, as required by R. 3, was issued or given, and, as such, the holding of the ninth Presidential election without a public notice is against the provisions of Act 31 of 1952. The two arguments advanced are devoid of substance. 3. The contention regarding validity of B S. 3 raised by the petitioner does not call for Badeep probe by us. R. 3 has been framed by Bike Central Government in exercise of the powers conferred by S. 21(2) (cc) of Act 31 of 1952. R. 3 reads as under : "R. 3. Public Notice of intended election - The public notice of an intended election referred to in S. 5 shall be in Form and shall like published by the Returning Officer by such means in such language or languages sad in such places as the Election Commission may direct." 4. It prescribes the form. It is in Form. the Rule is unexceptionable in this regard. The manner, language and places of publication of notice are to be such as he Election Commission may direct. The petitioners expresses his annoyance to this part of R. 3. 5. The Election Commission is constituted under Article 324 of the Constitution. Under Article 324(1) of the Constitution, it is expressly charged with "the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the office of President land Vice-President held under the Constitution." The founding father of our Constitution had themselves confided in the Commission. The Commission is headed by an eminent person. The Chief Election Commissioner is an independent person immune from Executives influence. The Commission is headed by an eminent person. The Chief Election Commissioner is an independent person immune from Executives influence. It is evident by Article 324(5) of the Constitution relating to alteration of the conditions of service and re movability from office, It is zealously safeguarded. 6. Therefore, no reasonable man can ever raise an accusing finger if the power is conferred on the Election Commission to give directions regarding the mariner, language and place of publication. The . petitioner cannot be heard to say this. 7. The very fact that the power to give directions has been conferred on a highly responsible and constitutional authority like the Election Commission is sufficient Is guard against arbitrariness. It is well settled that when a discretion is conferred on a high authority, it is to be readily presumed that the power will be exercised reasonably, fairly and rationally. The provision cannot be struck down on that ground alone. In R. S. Das v. Union of India AIR 1987 SC 593 (at p. 607) the Supreme Court observed as follows : - 'Where power is vested in high authority there is a presumption that the same would be exercised in a reasonable manner and if the selection is made in an arbitrary manner the courts have ample power to strike down the same." 8. This presumption has also been held in State of Punjab v. Dial Chand Gian Chand & Co. AIR 1983 SC 743 ; A. K. M. Hasan Uzzaman, (1982) 2 SCC 218 ; Sukhvinder Pal Bipan Kumar v. State of Punjab, AIR 1982 SC 65 : S. S. Moghe v. Union of India, AIR 1981 SC 1495 : Laxmi Khandsari Udyog v. State of U. P. AIR 1981 SC 873 and Accountant General v. Doraiswamy, AIR 1981 SC 783 . 9. We cannot believe that the Election Commission would go wild or berserk in issuing directions or that it will act recklessly and mala fide. In case the power is exercised capriciously or whimsically, it can be challenged before the Election Tribunal constituted under the Act. The very fact that the highest judicial forum in the land is the Election tribunal is sufficient deterrent against such exercise of powers. 10. Thus, to sum up, the conferment of power on a high authority and the availability of judicial review against any capricious exercise of power are the in-built safeguards. The very fact that the highest judicial forum in the land is the Election tribunal is sufficient deterrent against such exercise of powers. 10. Thus, to sum up, the conferment of power on a high authority and the availability of judicial review against any capricious exercise of power are the in-built safeguards. A provision cannot be struck down merely on the ground of apprehended abuse of power. Thus we have no hesitation in holding that R. 3 is constitutionally valid piece of legislation. 11. We are further of the view that a challenge, as in the present case, cannot be made through a writ petition in view of the 1 express bar created by Article 71(l)of the Constitution. Article 71(1) reads as under : "(1) All doubts and disputes arising out of or in connection with the election of a President or Vice-President shall be enquired into and decided by the Supreme Court whose decision shall be final." Art. 71(3) provides as follows ; "(3) Subject to the provisions of this Constitution; Parliament may by law regulate any matter relating to or connected with the election of a President or Vice President." 12. To carry out the purposes of Article 71(1) of the Constitution, the Parliament enacted Act 31 of 1952. This was done in pursuance of Entry 72 of List I. Entry 72 reads ; "72. Elections to Parliament, to the Legislatures of States and to the offices of President and Vice-President; the Election Commission." 13. The grounds on which the election can be challenged as well as the mode of questioning it have been laid down by Act 31 of 1952. S. 14-A provides the manner in accordance with which alone the election of the President can be called in question by an election petition presented to the Supreme Court by a candidate or twenty or more electors. S. 13(a) of the Act defines as to who is a candidate entitled to file an election petition. Article 71(1) of the Constitution is wide in terms "all doubts and disputes" to be raised in an election petition. A dispute relating to non-publication of Public Notice required by R. 3 may also form the subject matter of an election petition which may be filed before the Supreme Court by the persons authorised to do so. 14. Article 71(1) of the Constitution is wide in terms "all doubts and disputes" to be raised in an election petition. A dispute relating to non-publication of Public Notice required by R. 3 may also form the subject matter of an election petition which may be filed before the Supreme Court by the persons authorised to do so. 14. It was urged by the petitioner that he has a right under Article 58 of the Constitution to be a candidate for Presidentship and if he had been debarred from filing his nomination due to non-compliance of the mandatory provision contained in R. 3, his petition filed under Article 226 of the Constitution could not be rejected. 15. The right to be a candidate at an election is not a civil right. It is a creature of a Statute and Special Law and must be subject to limitations imposed by it. It was for the Parliament to determine and lay down all matters relating to the election of its own members : President and Vice-President. If the Parliament has provided a special machinery for challenging an election and further laid down the conditions as to the persons who can file election petitions, the mandate of the Parliament is final. The special jurisdiction has to be exercised in accordance with the law which creates it. In N. P. Ponnuswami v. Returning Officer, Namakkal AIR 1952 SC 64 , the law to the above effect has been laid down. 16. In Jagannath v. Jaswant Singh, AIR 1954 SC 210 the Supreme Court observed as under ; "The general rule is well settled that statutory requirement of election law must be strictly observed and that an election contest is not an election at law or a suit in equity but is a purely statutory proceeding unknown to the Common Law and that the Court possesses no Common Law power." 17. In Indrajit Barua v. Election Commission, AIR 1986 SC 103 , the Supreme Court has held that this is the settled law. 18. In P. S. Wallace v. Union of India, AIR 1975 Delhi 112, a Division Bench of the Delhi High Court held that a challenge to the various provisions of Act 31 of 1952 regarding Presidential Election could be made only by means of an election petition to be filed before the Supreme Court. 19. In Dr. 18. In P. S. Wallace v. Union of India, AIR 1975 Delhi 112, a Division Bench of the Delhi High Court held that a challenge to the various provisions of Act 31 of 1952 regarding Presidential Election could be made only by means of an election petition to be filed before the Supreme Court. 19. In Dr. N. B. Khare v. Election Commr., AIR 1957 SC 694 , it has been said that the doubts and disputes in connection with the election of a President cannot be raised by way of a writ petition before the election is held even in the Supreme Court. It is only after the election is held that in an election petition the Supreme Court can resolve these doubts and disputes. 20. Before us it was contended that the petitioner would have no locus standi to present the election petition as he will not fulfil the qualifications for doing so. That may be correct, but the conclusion arrived at by us cannot be shaken on that ground. If Act 31 of 1952 lays down the manner in which an election petition can be filed, and provides that it could be done only by the persons mentioned- in S. 13, the petitioner would not be entitled to get any relief in this petition filed under Article 226 of the Constitution. 21. It was urged by the petitioner that here has been no "Public Notice", as required by R.3 and even if this Rule is valid, non-j compliance of the Rule is fatal. For this proposition, the petitioner relied on para 7 of the writ petition. The relevant portion reads "That there are rumours that the nominations are being filed for the 9th Presidential Election in the Capital, for which there has been no proper Public Notice........." 22. The averment is based on personal knowledge of the petitioner. We are unable to attach any credence to the statement made in para 7. The petitioner has made this allegation which, according to our view, has no legs to stand upon. Moreover, it is impossible to accept for such an important election that no public notice as required by R. 3 had been made. There is a presumption about the regularity of official business. In his case, the presumption has to be made in favour of publication of the Public Notice. Moreover, it is impossible to accept for such an important election that no public notice as required by R. 3 had been made. There is a presumption about the regularity of official business. In his case, the presumption has to be made in favour of publication of the Public Notice. Sri N. B. Singh, learned counsel appearing for the respondents, made a statement before that Public Notice, as required by R. 3, had been made. Such a statement was made by the counsel for the Union in Writ Petition no. 9814 of 1987 filed by the petitioner a himself, which was dismissed on 15-6-1987. 23. More or less similar reliefs claimed in the aforesaid writ petition proved abortive. However, undaunted, he marches on. 24. The petitioner relied on the decisions 2 of our Court given in connection with Land Acquisition Act and urged that compliance of publication of the Public Notice should have been made in the same manner as it has lid down in the aforesaid two decisions. if interpreting R. 3 framed under Act .31 of 1952. They were in a different context. It is settled that a decision is the precedent only for that decides. Every rule has to be interpreted in the context to the provisions contained in the Act in pursuance of which it has been framed. 25. Those Rules are, therefore of no assistance. 26. In N. B. Khare v. Election Com. as under : decisions are not relevant for mission of India ( AIR 1957 SC 694 at p. 698) (supra) S. R. Das, C. J. cautioned thus: "The well recognised principles of election law, Indian and English, is that elections should not be held up and that the person aggrieved should not be permitted to ventilate his individual interest in derogation of the general interest of the people, which requires that elections should be gone through according to the time schedule. It is, therefore, in consonance both with the provisions of Article 62 and with good sense to hold that the word "election" used in Article 71 means the entire process of elections." 27. For what we have said above, we dismiss the writ petition summarily.